BY DESMOND CHINGARANDE
SUSPENDED Chief Magistrate Mishrod Guvamombe yesterday refused to be tried by a serving or retired magistrate in Zimbabwe or from the Sadc region.
Guvamombe, who is facing criminal abuse of offices charges, is demanding that because he was chief magistrate, he must be tried by a High Court judge, saying the trial by a magistrate will be akin to a chief accused of committing an offence being tried by a village head.
The suspended judicial officer told a new magistrate from Hwange, Collet Ncube, that he must recuse himself from the matter since he was a subordinate.
He said Ncube’s recusal would be in the interest of justice or else his judgment will be viewed as a favour to him or malicious.
The suspended magistrate is accused of criminal abuse of office after he offered an attachment to law students and former Cabinet ministers Supa Mandiwanzira and Saviour Kasukuwere at the Harare Magistrates’ Courts, where they are currently being tried for corruption-related allegations.
He is also facing charges of defeating the course of justice after he allegedly directed a subordinate, Elijah Makomo, to recuse himself in a trial involving his alleged business partner’s son.
Guvamombe, who is represented by Jonathan Samukange, said justice must be seen to be done in the eyes of an ordinary person, saying the village head must report to the chief, which must also apply to his case.
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“All magistrates in the country, who served, serving or retired under the chief magistrate are, therefore, too junior to preside over his trial. This is like a chief in his area accused of an offence and is summoned to appear before a headman or a sabhuku (village head),” Samukange said.
“The village head reports to the chief and the same applies. You, Your Worship, report to the chief magistrate. My client is of the view that he will not receive a fair trial as enshrined in section 69 of the Constitution, which guarantees a right to a fair trial.
“Justice must be seen to be done in the eyes of an ordinary person. The State does not lose anything by simply indicting the accused to the High Court. The court had indirectly conceded by assigning acting chief magistrate Munamato Mutevedzi to preside over his initial appearance and bail application, while regional magistrates presided over subsequent routine remand hearings.”
Samukange said it was an admission by the court that a provincial magistrate was too junior to hear Guvamombe’s bail application and it was also an admission that it would not be proper for a chief magistrate to appear before a provincial magistrate.
But special unit prosecutor Zivanai Macharaga opposed the application, saying it lacked merit.
Macharaga said Guvamombe was not the only magistrate to be tried by a fellow magistrate.
He said former High Court judge Benjamin Paradza was once tried by Justice Simpson Mutambanengwe after Justice Chinembiri Bhunu recused himself, citing that they were friends with Paradza and were together in the liberation war during the 1970s.
But Samukange objected, saying Macharaga was misleading the court. He pointed out that during the time Paradza was tried, Mutambanengwe was already a judge at the Namibian Supreme Court and he was Paradza’s senior by far.
Ncube postponed the matter to today for the ruling on the application.
